Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. E. H. v State Dept of Health and Social Services (06/08/2001) sp-5419

E. H. v State Dept of Health and Social Services (06/08/2001) sp-5419

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.


             THE SUPREME COURT OF THE STATE OF ALASKA

E.H.,                         )
                              )    Supreme Court No. S-9532
               Appellant,     )  
                              )    Superior Court No.
     v.                       )    3AN-96-380/381 CP
                              )
STATE OF ALASKA, DEPARTMENT   )     O P I N I O N
OF HEALTH AND SOCIAL SERVICES,)         
DIVISION OF FAMILY AND YOUTH  )
SERVICES,                     )    [No. 5419 - June 8, 2001]
                              )    
               Appellee.      )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, at Anchorage,
                     Rene J. Gonzalez, Judge.


          Appearances: Stuart G. Ross, Law Office of
Stuart G. Ross, Anchorage, for Appellant.  Vennie E. Nemecek,
Assistant Attorney General, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.  Barbara L. Malchick,
Deputy Public Advocate, and Brant McGee, Public Advocate,
Anchorage, for Guardian ad litem.


          Before:  Fabe, Chief Justice, Matthews,
          Eastaugh, and Bryner, Justices.   [Carpeneti,
Justice, not participating.]


          BRYNER, Justice.


I.   INTRODUCTION
          In 1996 the superior court granted the Department of
Health and Social Services (the department) temporary custody of
E.H.'s two sons, J.J.H. and J.M.H.  The court adjudicated the boys
children in need of aid (CINA) in 1997.  In 1999 the department
successfully petitioned for termination of E.H.'s parental rights. 
E.H. repeatedly moved for dismissal for lack of jurisdiction and
argued that her children were not properly before Alaska courts. 
E.H. claims that the superior court erred by denying her motions to
dismiss.  Because the record demonstrates that the superior court's
findings satisfying statutory jurisdictional requirements are not
clearly erroneous, we affirm the termination of E.H.'s parental
rights.
II.  FACTS AND PROCEEDINGS
          During the spring of 1996, the department received
reports of harm relating to E.H.'s two sons, J.J.H. and J.M.H. 
While investigation into those reports was underway, E.H. left
Alaska with her sons.  The family ended up in Edmonton, Alberta,
homeless and in need of medical care.  E.H. and her sons came to
the attention of Canadian immigration authorities and a Canadian
child protective worker, Carol Kanuka, who first obtained an
apprehension order from a Canadian court and then temporary
guardianship of the two boys.  Upon learning that E.H. and her sons
were United States citizens from Anchorage, Kanuka arranged for an
Alaskan social worker, Stephanie Pinsly, to fly to Edmonton to
retrieve the boys.
          On August 28, 1996, Pinsly retrieved the boys from
Edmonton and flew with them to Anchorage.  On that same day, the
department filed in superior court a petition for temporary custody
of the boys and for adjudication that they were CINA.  Pinsly had
served E.H. with notice of the petition while in Edmonton.  E.H.
remained in Edmonton for about another month.
          The superior court first heard the department's petition
on August 30, 1996.  The department, which had placed the children
in foster care in Alaska, submitted an offer of proof describing
the events that had transpired.  The court accepted the
department's offer of proof, found there was probable cause that
the boys were CINA, and awarded temporary custody of the boys to
the department.
          The children remained in foster care in Alaska until the
CINA trial, at which E.H. did not testify.  At the CINA trial, the
court heard from multiple witnesses who described their
interactions with E.H. and her sons, discussed the condition of the
children while they were in Edmonton, and recounted conversations
in which E.H. had given inconsistent explanations for her presence
in Edmonton.  The superior court rejected argument by E.H.'s
attorney that the case should be dismissed for lack of
jurisdiction, concluding it had jurisdiction because E.H. and her
sons were Alaska residents.
          The court adjudicated both boys CINA.  Under the
Interstate Compact for the Placement of Children, the department
sent the children to Oregon to live with J.J.H.'s father.
          In 1999 the department petitioned for termination of
E.H.'s parental rights.  The petition recounted how the boys had
come to the department's attention in 1996 and how E.H. had been
deported back to Alaska from Canada.  The termination petition
included allegations based on information that the department had
learned since the CINA adjudication.  In response to the
department's petition, E.H. again moved for dismissal arguing that,
because her sons had been found in Canada, the jurisdictional
requirements of the CINA statutes had not been satisfied.
          The superior court denied E.H.'s motion.  Instead, the
court held a two-day trial.  Testimony at the termination trial
included information about E.H.'s circumstances in Edmonton and
prior statements by E.H. that supported a finding that she and her
sons retained their Alaska residency when they were in Canada.  The
superior court again found that the children were Alaska residents
and terminated E.H.'s parental rights.
          E.H. appeals.
III. DISCUSSION
          On appeal E.H. asks whether the superior court committed
reversible error by denying her motions to dismiss.  She insists
that the superior court exceeded its authority by entertaining CINA
proceedings not permitted by AS 47.10.010.  In a brief joined by
the department, the guardian ad litem contends that the superior
court correctly exercised subject matter jurisdiction.
     A.   Standard of Review
          We review the superior court's factual findings for clear
error and will set them aside only when review of the entire record
leaves us firmly convinced that a mistake has been made. [Fn. 1] 
Whether the superior court's factual findings satisfy statutory
requirements is a legal question which we answer for ourselves.
[Fn. 2]  
     B.   The CINA Statutes Were Satisfied.

          E.H. contends that her sons were not properly before the
court, because they were neither Alaska residents nor found in
Alaska as required by CINA statutes.  The superior court rejected
that argument, repeatedly finding that the boys were Alaska
residents.
          When the department first petitioned for CINA
adjudication in 1996, former AS 47.10.010(a) provided:
          Proceedings relating to a minor under 18 years
of age residing or found in the state are governed by [the CINA
statutes] except as otherwise provided in this chapter, when the
court finds the minor to be a child in need of aid . . . .[ [Fn. 3]]
 
In keeping with the protective purpose of the CINA statutes, we
interpret former and current AS 47.10.010 to establish that CINA
statutes govern proceedings relating to minor Alaska residents
regardless of whether the minor is physically present in Alaska. 
Residency for purposes of statutes such as AS 47.10.010 is defined
by AS 01.10.055, which specifies that Alaska residents retain their
residency unless, during an absence, they establish residency
elsewhere or are "absent under circumstances that are inconsistent
with an intent" to make Alaska their home. [Fn. 4]
          E.H. does not dispute that her children were Alaska
residents before they went to Edmonton.  Instead, she argues that
"[t]hey were no longer Alaska residents" when the state filed its
first petition in this case.  The guardian ad litem argues that the
superior court did not err in finding that the children retained
their Alaska residency while they were in Canada.
          We agree that the superior court's findings that the boys
retained their Alaska residency are not clearly erroneous.  E.H.
claims that the only relevant evidence was her own testimony that
she had gone to Edmonton with an intent to remain there.  However,
she mischaracterizes the record, which amply supports a finding of
Alaska residency.
          The state sought temporary custody of E.H.'s sons in
August 1996.  At the temporary custody hearing, the department
offered to prove that, upon discovering that E.H. and her sons were
Alaska residents, Canadian authorities made arrangements with the
department for the boys' return to Alaska.  The department reported
that, at the time of the hearing, the children were temporarily in
Alaska foster care, and that the Canadian court that had originally
issued an apprehension order naming a Canadian social worker as
temporary guardian of the boys would dismiss its case and defer to
Alaska's jurisdiction.  The superior court accepted the
department's offer of proof and found there was probable cause that
the boys were CINA.
          The boys remained in foster care in Alaska until they
were adjudicated CINA.  At the CINA trial, the department offered
evidence consistent with a finding of residency.  Multiple Canadian
public servants testified that E.H. and her sons had not
established a home in Edmonton and seemed to be in Edmonton merely
by chance.  Pinsly, the social worker who brought E.H.'s sons back
from Edmonton, testified that she had received reports of harm
about E.H.'s sons back in May 1996.  Pinsly also described
conversations she had in August 1996 with E.H.'s sons who reported
that they had only arrived in Edmonton because they happened to get
a ride after their car broke down.  The Alaska social worker
assigned to the family at the time of the CINA trial testified that
E.H. had returned to Anchorage after the department was awarded
temporary custody of her sons.  In closing argument, the department
emphasized evidence that E.H. and her family were in Canada
illegally and were subject to deportation.  E.H. did not testify at
the CINA trial nor did she offer any evidence tending to support a
finding that the children were not Alaska residents.
          Overall, the testimony presented at the CINA trial
supported the superior court's finding that E.H. and her sons were
Alaska residents who were staying in a park in Edmonton.  The
superior court's finding of residency supporting the rejection of 
E.H.'s jurisdictional challenge is not clearly erroneous.
          E.H. later testified at the termination trial that she
went to Canada with the intent to remain there.  But the department
again presented witnesses who had previously testified at the CINA
trial.  They testified about E.H.'s circumstances in Edmonton and
reported prior statements by E.H. that were consistent with her
family's continued Alaska residency.  The evidence presented at the
termination trial supported the superior court's renewed finding
that E.H. and her sons remained Alaska residents while they were
out of the state in 1996.
          The superior court did not clearly err in finding that
E.H.'s sons were Alaska residents as required by the CINA statutes
or in declining to dismiss the case for lack of compliance with the
CINA statutes.
     C.   The Jurisdictional Statutes Were Satisfied.
          In her motions to dismiss, E.H. repeatedly claimed that
she was entitled to dismissal because Alaska courts lacked
jurisdiction.  As the guardian ad litem points out, statutes other
than AS 47.10.010 establish the scope of the superior court's
jurisdiction in cases such as this.
          1.   The petition for temporary custody and CINA
               adjudication

          In 1996 the department first petitioned to be given
temporary custody and to have the two boys adjudicated CINA.  At
that time, the Uniform Child Custody Jurisdiction Act [Fn. 5]
(UCCJA) was in effect in Alaska.  Former AS 25.30.020 provided as
follows:
          (a)  The superior court has jurisdiction to
make a child custody determination by initial or modification
decree if the conditions set out in any of the following paragraphs
are met:

               (1)  this state (A) is the home state of
the child at the time of commencement of the proceeding, or (B) had
been the child's home state within six months before commencement
of the proceeding and the child is absent from this state because
of removal or retention by a person claiming custody or for other
reasons, and a parent or person acting as parent continues to live
in this state; or

               (2)  the child is physically present in
this state and is a child in need of aid as defined in AS
47.10.990; or

               (3)  it (A) appears that no other state
would have jurisdiction under prerequisites substantially in
accordance with (1) or (2) of this subsection, or another state has
declined to exercise jurisdiction on the ground that this state is
the more appropriate forum to determine the custody of the child,
and (B) is in the best interest of the child that this court assume
jurisdiction.

          (b)  Except under (a)(2) and (3) of this
section, physical presence in this state of the child, or of the
child and one of the contestants, is not alone sufficient to confer
jurisdiction on a court of this state to make a child custody
determination.

          (c)  Physical presence of the child, while
desirable, is not a prerequisite for jurisdiction to determine the
child's custody.

Jurisdiction under the UCCJA was determined as of the date that the
petition was filed with the court. [Fn. 6]
          Alaska would have possessed jurisdiction as the
children's home state under former AS 25.30.020(a)(1) if the boys
had lived in Alaska for six consecutive months prior to the
department's petition, with temporary absences counted as part of
the six months. [Fn. 7]  As the guardian ad litem observes,
although the superior court heard evidence that the department had
received reports of harm prior to the family's departure, the
record does not indicate how long E.H. and her sons had lived in
Alaska before they went to Canada.  It is possible that the
children had not been in Alaska long enough for Alaska to be their
home state as defined by former AS 25.30.900(5), thereby preventing
the superior court from properly exercising jurisdiction under
AS 25.30.020(a)(1).
          However, even if Alaska did not have jurisdiction as the
boys' home state, the superior court would still retain
jurisdiction under former AS 25.30.020(a)(2) because the boys were
present in Alaska and in need of aid on the day that the state
filed its petition for temporary custody.
          Additionally, jurisdiction existed under former
AS 25.30.020(a)(3) if no other state had jurisdiction and it was in
the boys' best interest for Alaska to hear the case.  As the party
claiming that Alaska courts lacked jurisdiction, E.H. bore the
burden of presenting evidence demonstrating that another state had
jurisdiction under a similar statute. [Fn. 8]  Because no such
evidence was ever presented, we presume that no other state had
jurisdiction and that the superior court had jurisdiction under
former AS 25.30.020(a)(3) if it would be in the boys' best interest
for Alaska courts to hear the case.  
          In making that best interest determination, we look to
the purposes of UCCJA, which include channeling litigation to "the
state with which the child and the child's family have the closest
connection" [Fn. 9] and discouraging "continuing controversies over
child custody in the interest of greater stability of home
environment." [Fn. 10]  In B.J. v. J.D. we referred to those
statutory goals and determined that it was in the best interest of
children living in Alaska and lacking a home state to have cases
involving their custody be heard by Alaska courts. [Fn. 11]  In
this case, E.H.'s sons lacked recent contacts with any jurisdiction
other than Alaska and Canada, and they were subject to deportation
from Canada.  Under the circumstances, it was in their best
interest to have their custody decided by Alaska courts.  The
superior court thus possessed jurisdiction under former AS
25.30.020(a)(3).
          Because the requirements of former AS 25.30.020(a) were
met, it was not error for the superior court to deny E.H.'s motion
to dismiss the CINA petition for lack of jurisdiction.
          2.   The termination petition
          In 1997 the superior court awarded the department custody
of the two boys.  The department sent the boys to live with
J.J.H.'s father in Oregon through the Interstate Compact on the
Placement of Children. [Fn. 12]  The department petitioned for
termination of E.H.'s parental rights in June 1999.
          By 1999 UCCJA had been supplanted by the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA), [Fn. 13] which
defines "child custody proceeding" to include CINA and termination
of parental rights. [Fn. 14]  UCCJEA provides for exclusive,
continuing jurisdiction as follows:
          Except as otherwise provided in AS 25.30.330,
a court of this state that has made a child custody determination
consistent with AS 25.30.300 or 25.30.320 has exclusive, continuing
jurisdiction over the determination until

            (1)  a court of this state determines that
neither the child, the child and one parent, nor the child and a
person acting as a parent have a significant connection with this
state and that substantial evidence is no longer available in this
state concerning the child's care, protection, training, and
personal relationships; or

            (2)  a court of this state or a court of
another state determines that neither the child, nor a parent, nor
a person acting as a parent presently resides in this state.[ [Fn.
15]]

Under AS 25.30.310(a), prior custody and CINA adjudications are
"child custody determinations consistent with AS 25.30.300" that
provided the superior court with continuing jurisdiction. [Fn. 16] 
The court retained jurisdiction when the department petitioned for
termination of E.H.'s parental rights unless one of two terminating
conditions had occurred. [Fn. 17] 
          The court's jurisdiction would have been terminated if an
Alaska court had determined that
          neither the child[ren], the child[ren] and one
parent, nor the child[ren] and a person acting as a parent [had]
significant connection with this state and that substantial
evidence [was] no longer available in [Alaska] concerning the
child[ren]'s care, protection, training and personal
relationships[.][ [Fn. 18]]
That terminating condition had not occurred when the department
petitioned for termination of E.H.'s parental rights because, due
to the department's custody of the boys and continuing obligations
to the family, substantial evidence remained available in Alaska
concerning the care, protection, training, and relationships of the
boys.
          Alternatively, the continuing jurisdiction would have
been terminated if an Alaska court or a court of another state had
determined that "neither the child, nor a parent, nor a person
acting as a parent presently reside[d] in [Alaska]." [Fn. 19]  But
under Article V of the Interstate Compact, through which E.H.'s
sons were placed in Oregon, the boys retained constructive Alaska
residency for jurisdictional purposes. [Fn. 20]  So when the
department filed for termination of E.H.'s parental rights that
second possible terminating condition had not occurred. 
          Because neither condition terminating the superior
court's continuing jurisdiction had occurred when the department
petitioned for termination of E.H.'s parental rights, the superior
court could properly hear the department's termination petition. 
The superior court did not err in denying E.H.'s motion to dismiss
for lack of subject matter jurisdiction.
IV.  CONCLUSION
          Because the statutory jurisdictional requirements were
satisfied at each step of the litigation, we conclude that it was
not error to deny E.H.'s motions to dismiss for lack of
jurisdiction.  We AFFIRM the superior court's termination of E.H.'s
parental rights.


                            FOOTNOTES


Footnote 1:

     See D.M. v. State, Div. of Family & Youth Servs., 995 P.2d
205, 207 (Alaska 2000); E.M. v. State, Dep't of Health & Social
Servs., 959 P.2d 766, 768 (Alaska 1998); In re S.A., 912 P.2d 1235,
1237 (Alaska 1996).


Footnote 2:

     See D.M., 995 P.2d at 207; E.M., 959 P.2d at 768; R.J.M. v.
State, 946 P.2d 855, 861 (Alaska 1997); R.R. v. State, 919 P.2d
754, 755 n.1 (Alaska 1996); Langdon v. Champion, 745 P.2d 1371,
1372 n.2 (Alaska 1987).


Footnote 3:

     By the time the department petitioned for termination of
E.H.'s parental rights, the legislature had slightly changed the
language of AS 47.10.010(a) to read:

          Proceedings related to a child under 18 years
of age residing or found in the state are governed by [the CINA
statutes] when the child is alleged to be or may be determined by
the court to be a child in need of aid under AS 47.10.011.


Footnote 4:

     AS 01.10.055 reads:

               (a)  A person establishes residency in
the state by being physically present in the state with the intent
to remain in the state indefinitely and to make a home in the
state.

               (b)  A person demonstrates the intent
required under (a) of this section

                    (1)  by maintaining a principal
place of abode in the state for at least 30 days or for a longer
period if a longer period is required by law or regulation;  and

                    (2)  by providing other proof of
intent as may be required by law or regulation, which may include
proof that the person is not claiming residency outside the state
or obtaining benefits under a claim of residency outside the state.

               (c)  A person who establishes residency
in the state remains a resident during an absence from the state
unless during the absence the person establishes or claims
residency in another state, territory, or country, or performs
other acts or is absent under circumstances that are inconsistent
with the intent required under (a) of this section to remain a
resident of this state.

See Perito v. Perito, 756 P.2d 895, 898 (Alaska 1988).





Footnote 5:

     Former AS 25.30.010-.910.


Footnote 6:

     See Rexford v. Rexford, 631 P.2d 475, 478 (Alaska 1980).


Footnote 7:

     Former AS 25.30.900(5) defined "home state" as

          the state in which the child, immediately
preceding the time involved, lived with the child's parents, a
parent, or a person acting as parent, for at least six consecutive
months, and, in the case of a child less than six months old, the
state in which the child lived from birth with any of the persons
mentioned; periods of temporary absence of any of the named persons
are counted as part of the six-month or other period[.]


Footnote 8:

     See Pinneo v. Pinneo, 835 P.2d 1233, 1236 (Alaska 1992).


Footnote 9:

     Former AS 25.30.010(3).


Footnote 10:

     Former AS 25.30.010(4).


Footnote 11:

     950 P.2d 113, 116 (Alaska 1997) (affirming superior court's
assumption of jurisdiction to hear custody dispute involving child
who had been living with her father in Alaska for less than six
months).


Footnote 12:

     See AS 47.70.010-.080.


Footnote 13:

     See AS 25.30.300-.910.


Footnote 14:

     AS 25.30.909(4).


Footnote 15:

     AS 25.30.310(a).


Footnote 16:

     Like former AS 25.30.020(a), AS 25.30.300 creates jurisdiction
for cases involving children whose home state is Alaska and
children whose cases may not be heard elsewhere. AS 25.30.300 reads
as follows:

          (a)  Except as otherwise provided in AS
25.30.330, a court of this state has jurisdiction to make an
initial child custody determination only if

               (1)  this state is the home state of the
child on the date of the commencement of the proceeding;

               (2)  this state was the home state of the
child within six months before the commencement of the proceeding
and the child is absent from this state but a parent or person
acting as a parent continues to live in this state;

               (3)  a court of another state does not
have jurisdiction under provisions substantially similar to (1) or
(2) of this subsection, or a court of the home state of the child
has declined to exercise jurisdiction on the ground that this state
is the more appropriate forum under provisions substantially
similar to AS 25.30.360 or 25.30.370, and

                    (A)  the child and the child's
          parents, or the child and at least one parent
or a person acting as a parent, have a significant connection with
this state other than mere physical presence; and

                    (B)  substantial evidence is
available in this state concerning the child's care, protection,
training, and personal relationships;

               (4)  all courts having jurisdiction under
the criteria specified in (1) -- (3) of this subsection have
declined to exercise jurisdiction on the ground that a court of
this state is the more appropriate forum to determine the custody
of the child under provisions substantially similar to AS 25.30.360
or 25.30.370; or

               (5)  no court of another state would have
jurisdiction under the criteria specified in (1) -- (4) of this
subsection.

          (b)  The provisions of (a) of this section are
the exclusive jurisdictional bases for making a child custody
determination by a court of this state.

          (c)  Physical presence of or personal
jurisdiction over a party or a child is not necessary or sufficient
to make a child custody determination.


Footnote 17:

     See AS 25.30.310(a).


Footnote 18:

     AS 25.30.310(a)(1).


Footnote 19:

     AS 25.30.210(a)(2).


Footnote 20:

     AS 47.70.010, Article V.(a) provides in relevant part:

          The sending agency shall retain jurisdiction
over the child sufficient to determine all matters in relation to
the custody, supervision, care, treatment and disposition of the
child which it would have had if the child had remained in the
sending agency's state, until the child is adopted, reaches
majority, becomes self-supporting or is discharged with the
concurrence of the appropriate authority in the receiving state.